A Simple Solution for Atlanta’s Water Problems

OK.  I agree it was a cheap trick to draw you in to read this post since there will be nothing simple about solving Metro Atlanta’s water  challenges especially now with the three-year clock ticking away following the recent federal court decision. 

On the other hand, in broad terms the approach to resolution of a water resources management dispute is really not “rocket surgery.”  It is about supply and demand.

As Atlanta proceeds forward to seek resolution of this dilemma, it must be in a position to present answers to questions on both sides of this equation based upon technically sound, highly credible assessments.  Questions like:

On the Supply Side

• What are all of the sources of surface and ground water that are theoretically available to supplement withdrawals from Lake Lanier?
• What is the feasibility (technically, economically and environmentally) of tapping these resources?
• What are the options for providing increased storage capacity in the region to provide an assured adequate future water supply?
• What is the feasibility (again, from a technical, economic, and environmental perspective) of implementing such alternative storage capacity?

On the Demand Side

• What is the current record of water users (municipal, industrial, commercial, and agricultural) in the region with regard to water conservation and water reuse/recycle?
• What additional conservation/reuse/recycle measures could be employed and what is the technical, economic and environmental feasibility of implementing such measures?
• What are the likely future legitimate needs of downstream users?
• What water flow regimes and water quality levels must be maintained to assure the continuing ecological health of the river systems involved?

I am sure that a lot of work to address these issues has already been done or is ongoing.  It will be important, especially to the extent that Congress is now a potentially significant forum for resolution of this dispute, that the analyses be perceived as objective and based on sound engineering assessments.

Professor Harry West recently published an op-ed in the Atlanta Journal-Constitution in which he expressed some pessimism about the prospects for an effective compromise of the water dispute.  I am more optimistic than Professor West, but I do think that the likely outcome will meet my own personal definition of a compromise:  “A resolution of a dispute in which all parties are equally disappointed.” 

 

 

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IT’S GOING TO RAIN FOREVER, OFF AND ON

When I was a kid in Orlando, Florida (pre-Disney), I would ask my Dad when this awful rain that was keeping me inside was going to stop.  He would always say:  “Son, it’s going to rain forever, off and on.”  He was right, of course, but lately in many parts of the globe and here in the U.S. it has been more off than on.

 

So I was a bit dismayed when yesterday’s newspaper headlines in Atlanta read:  “Area’s historic drought finally over.”  Not because the story was inaccurate but because I could almost hear the collective sigh of relief from the region:  “Whew, finally.  Now we can worry about something else.”

 

Any serious assessment tells us that we cannot stop worrying about water resources issues because of short term relief and the technical definition of drought.  It is now when the combination of regulation, motivation and inspiration that I discussed in an earlier post is most important with a special emphasis on the inspiration.

 

Regions that are potentially water starved cannot be crisis driven.  Long range planning (which I define as making it right for our grand children) cannot be put on the back burner.

 

It seems to me that ultimately we will need to recognize that many geographic regions in this country have a certain eco-carrying capacity that in large part is controlled by access to water.  Effective water conservation and enhanced storage capacities can enlarge the carrying capacity but ultimately there is a limit.

 

Land use planning and management to limit and redirect growth is anathema to many who would let the market dictate.  But that approach allows resource scarcity to drive the ultimate outcome.  Maybe that is the right approach.  But maybe there are other ways in which we can help direct our own destiny.

 

I hate to end a post by admitting I do not know the answer but we need at least to have a lot more people asking the questions.

MEASURING YOUR WATER FOOT PRINT

The headline of the local issue of USA Today in Atlanta yesterday announced that the average rainfall across the United States for the first two months of 2009 was at the lowest level since the government began to keep records in the 1890’s.  (http://www.usatoday.com/weather/drought/2009-03-10-drought_N.htm)  Here, Lake Lanier is still at very low levels and water use restrictions have been in place for months.  Portions of Texas and Florida face largely unprecedented water shortages.

 

It is no surprise then that more and more businesses are facing the reality that national and global water resources are being stressed at a level that could pose a serious business operational risk that must be assessed and managed.  A critical part of this risk assessment process is the relative new phenomenon of “water foot printing.”  Many businesses and other entities have worked over the last several years to define their carbon foot print as part of responding to the growing concern over global climate change.  Now similar efforts are being taken in connection with water resources.

 

A sophisticated foot printing process goes far beyond assessing water use within the “fence line” although direct operational water use needs and water supply challenges remain important.  A sophisticated analysis looks also at the upstream supply chain.  A key customer (read “Wal-Mart”) can often strongly influence its suppliers’ commitment to sustainable business practices including water management.  Also, it is important to know what water vulnerabilities a supplier may have that might interrupt the supply chain.

 

Similarly a sophisticated understanding of the water environment faced by your customers can be critical.  The producers of fertilizer and farm equipment cannot afford to ignore the near term, mid term and long term water challenges faced by agriculture.

 

More on water foot printing in future posts.

 

As water resources issues continue to be critical, it seems to me that it is time to ask whether water managers both public and private should move toward an express “no net loss” approach to water?   This would be similar to the approach currently in place at the federal level for wetlands.  Because of the concern over the massive loss of wetlands over the last 200 years, federal policy now is aimed at maintaining at least the current level of wetland acreage. 

 

Federal wetland permitting involves a three step process:  avoidance, minimization, and mitigation.  Applicants must first demonstrate that the proposed development cannot feasibly (taking into account costs and technology) proceed without impacting some wetlands.  If wetlands can be totally avoided, they must be.  If not, then the developer must convince the government that the wetlands impact has been minimized to the extent feasible.  Finally, the developer is required to mitigate the loss of wetlands in one of several ways including purchasing credits from a “mitigation bank” that assures that more wetlands will be created or that higher quality wetlands will preserved in a way that will more than offset the loss of wetlands approved by the permit.  (I recognize that the effectiveness of this approach is the subject of considerable debate.)

 

In the water context, the major commitment announced by The Coca Cola Company in 2007 sounds a lot like the process discussed above.  Coca Cola (and its major bottlers) have committed to the three “Rs” of water management:  Reduce, Recycle, and Replenish.  Thus, Coke is committed to “avoid” using water in its operations where feasible.  Where water must be used, then attempts will be made to recycle water in appropriate applications so as to “minimize” the impacts that it must make.  Finally, Coke realizes that it is in a highly water dependent business.  I cannot think of any way to produce a soft drink product without some irreducible amount of water.  So the company has committed to “mitigate” its water resources impact by funding global efforts to replenish water resources.  The ultimate goal of the program is the have a neutral water foot print.

 

Given the extraordinary population explosion we face in the United States and globally, it seems to me that we must ultimately consider this type of three pronged approach to water management.  While seeking alternatives to water use and recycling water to the extent feasible is very important, I do not think that these alone are long term solutions.  Some key industries simply must use high volumes of water.  Plus, you and I have to drink the stuff.        

 

   

WALKING THE WATER RESOURCES TIGHT ROPE

At the Oscars the other night, the award for Best Documentary Film went to the story of the man who dared to walk a tight rope between the Twin Towers.  That got me thinking about the importance of balance in our lives.  Self help literature and talking head gurus tout the need for this equilibrium—eating a balanced diet, making time for self and family and work, etc.

 

As a long time environmental and water resources lawyer, I have been exposed to extreme views on the best way to protect the ecological resources of the globe.  These range from stringent top side down governmental regulation to laissez faire reliance upon the market place.  Adopting extreme positions is often attractive and gleans media attention.  Presidential candidate, Barry Goldwater, sounded very noble when he famously said:   “Extremism in the defense of liberty is no vice.  And moderation in the pursuit of justice is no virtue.”   But he lost.

 

I am afraid that my experience has been that the “truth” between extreme black and white approaches is balanced somewhere within the complex in-between matrix of grey.

 

This is likely to be particularly true in efforts to assure sustainable water resources especially in connection with conservation efforts that rely upon changing individual human behavior.  While industrial, commercial and governmental water users must be addressed in any comprehensive water management scheme, it is becoming increasingly clear that personal behavior and individual habits must change for there to be effective water conservation.

 

Focusing on this aspect of the water resources challenge will require the right balance of regulation, motivation, and inspiration.

 

There is some place for direct governmental regulation of individual water use habits.  For example, building code mandates for installation of low flow toilets and other water conservation measures may make sense and, more importantly, can be effectively enforced through a building permit process.  Many local governments are also imposing outdoor water use restrictions but my concern here is that these tend to be viewed as temporary emergency measures brought about by water shortages.  This may send the wrong message to a public that needs to be aware that water conservation should be a life time commitment.  In addition, enforcement of these types of regulations is difficult at best.  Having rules on the books that are not enforced may be worse than not having any rules in place at all.

 

Many of the habits that need to be changed occur within the home.  I cannot think of a direct enforceable regulatory approach that will force me to take a shorter shower, make sure the dishwasher is completely full before using, or do any of the myriad of other practical things that will ultimately save thousands of gallons of water.  Our free society would not stand for such intrusion.  At least one answer here is the use of motivation, in particular economic motivation.  What government can do is use pricing methods to encourage water conservation.  High priced gasoline in 2008 clearly affected driving habits and reduced fuel consumption.  Charging high prices for water use above some baseline minimum needs level could motivate behavior change.

 

Regulation may be impractical in many cases.  The use of economic incentives is complex and some people may not be motivated by saving a few dollars.  So, along with regulation and motivation, we need inspiration.  Note that I have deliberately chosen this term rather than “education.”  I believe that inspiration is education on steroids.  It is a presentation of the facts in such a way that the listener is compelled to want to do something to change the status quo, to be part of a solution.  From the White House to the state house to the county seat, from the pulpit to the class room to the news room, water conservation proponents need to speak to that desire which I believe resides in most of us simply to “do good.”

NO SMALL THING – Is it Time for a Federal Nanotechnology Act?

Many predict that nanotechnology—the manipulation of extremely small bits of matter—will ultimately revolutionize almost every aspect of our lives.  Nano-particles in sunscreen have protected our skin for years.  More recent applications help us sanitize our clothes in the dryer and increase the distance of our tee shots on the golf course.

 

Developers are working on applications to be used in food packaging that could detect food contamination and perhaps protect us from things like the recent rash of salmonella poisoning.  Health care researchers are excited about the potential of using nanotechnology as a diagnostic and treatment tool for cancer.  A recent article in our local paper depicted a “nanobot” that would travel through the body for a very up close and personal assessment.

 

Some have speculated that future generations will benefit from nanotechnology-based manufacturing systems that would make current energy intensive and environmentally stressful systems obsolete.  Others premise the possibility of the development of an elaborate artificial intelligence capacity.

 

As the research and development and application of nanotechnology has increased dramatically in the last several years, so has the growing concern by many that we do not adequately understand the environmental, health and safety implications of widespread use of products and other applications utilizing nano-particles.  Thus, our alphabet soup of regulatory agencies (e.g., EPA, FDA, NIOSH, and CPSC) have each begun assessing their appropriate role in addressing this issue. 

 

EPA, in particular, has implemented a voluntary data submittal program for those engaged in nano R&D and is running the “National Nanotechnology Initiative.”  The latter program was recently subject to substantial criticism in a report issued by the National Research Council of the National Academies.  (http://www.nap.edu/catalog.php?record_id=12559.)

 

Given the extraordinary potential of nanotechnology applications and current uncertainty about their safety, it seems to me that it may be the time to ask whether Congress should consider enacting a National Nanotechnology Act of 2009.  The modern era of environmental management was ushered in 40 years ago with the National Environmental Policy Act of 1969.  Major federal legislation addressing air pollution, water pollution, solid and hazardous waste management, and disposal site clean up followed in the next eleven years.  These laws have been tweaked over the years but many recognize that a fundamental flaw has been that often the laws were developed in “silos” focused on the environmental media being impacted.  Forty years of experience have demonstrated that environmental issues are best dealt with by an integrated analysis.

 

The American Bar Association’s Section on Environment, Energy and Resources issued a series of reports a while back concluding that nanotechnology regulation could be effected using existing statutory authority (http://www.abanet.org/environ/nanotech). That may be true but it seems to me that there is at least sufficient doubt on this issue that lawyers could spend a lot of time and resources addressing these issues in court thus delaying effective regulation.  Note that there is substantial debate on whether the nano version of existing substances would be considered “new” for the purposes of triggering review under the Toxic Substances Control Act which is one of the key laws designed to assure that new materials introduced into commerce are safe.

 

I can see the eye rolling by some who are skeptical of the role of federal regulation and who would argue that the market should control.  For these folks, I have three words:  “genetically modified organisms.”  Among other reasons, the lack of effective regulatory oversight allowing for the development of consumer confidence has lead to substantial road blocks in development of GMO.  Similarly, many consumers are still nervous when they hear talk about irradiation being used to assure food quality.   Organizations worried about the safety of nano-products could mount an effective fear-based campaign unless there are comprehensive regulatory controls in place that will assure consumer confidence based on good research.

 

A Federal Nanotechnology Act would provide an opportunity to develop a comprehensive approach that builds on existing law and allows us to apply four decades of experience as to what works and what does not.  Fundamental issues can be addressed such as:

 

–What is an acceptable level of residual risk for products that are in or seek to be in the market place?

 

–How much of the detail of the regulatory program should be in the federal law as opposed to being left to development by federal agencies?

 

–What is the appropriate role of states (and tribes) in this area?  Should they have full discretion to adopt more stringent than federal standards?  Should the field be pre-empted by federal law?

 

–How can we effectively protect legitimate claims for confidential business information while assuring adequate public confidence in safety data? 

 

These and many other issues could be addressed as part of a comprehensive effort to provide an appropriate balance between assuring the continuing development of nanotechnology that can positively shape our future while assuring citizens that this development is moving forward in a manner that is protective of our environment, health and safety.

 

 

 

 

 

 

 

NOT STANDING IDLY BY?—THE MOVE TO DIESEL ENGINE IDLING RESTRICTIONS

A few weeks ago, one of Atlanta’s TV news investigative teams confronted officials at a metro area school district with a video showing dozens of parked school buses with their engines idling for an extended period of time for no apparent reason.  The officials were, to say the least, embarrassed.

 

A growing number of state and local governments are adopting laws that restrict unnecessary diesel engine idling.  Others are at least strongly encouraging voluntary engine idling restrictions.  Many private large fleet owners already have idling restrictions in place and some have installed automatic cut off systems or other technological controls to limit idling. These initiatives are based upon the dual concern that extended idling causes harmful air emissions and wastes fuel.

 

Some of the more active governmental efforts are seen in New York (www.nyserda.org/publications/09-06GuidetoDieselIdlingReduction.pdf) and Texas (www.nctcog/trans/air/programs/idling/DieselFreightIdling.asp).  The City of Madison, Wisconsin has also adopted a very strict anti-idling ordinance (http://cityofmadison.com/attachments/9152c292-8c8e-4270-9ea/-5d920b418d4c.pdf).

 

Many of these restrictions use a “Model Law” developed by the United States Environmental Protection Agency as a starting point (www.epa.gov/smartway/document/420s06001.pdf).  The State of Florida recently adopted a state-wide diesel engine idling rule that is similar to the federal model.  The Georgia Environmental Protection Division is in the early stages of considering a state rule and is seeking stakeholder input.

 

In general, these new laws typically start with a prohibition on idling the main diesel engine of large on the road vehicles for more than 5 minutes (typically) in any 60 minute period.  The bulk of the remainder of the law is then taken up with exceptions to the 5-minute limitation to recognize situations where longer idling periods are necessary.  For example, if an 18-wheeler is stopped on the freeway in rush hour by an accident or just plain grid lock, the limitation would not apply.  Police and emergency vehicles on the job are excluded.   Service vehicles that rely on the main engine to run equipment essential to there use (e.g., utility repair truck lifts) are also not affected.

 

One of the areas of controversy deals with passenger comfort.  Transit buses often need to idle the engines to warm up (or cool down) the passenger compartment and to maintain a comfortable environment especially in extreme weather conditions.  The new rules generally provide relief in these situations.

 

Long haul truckers who sleep or rest in the cab typically must idle the truck for extended periods to maintain cab comfort.  A well rested driver is very important for the driver’s safety and for the overall safety of the driving public.  Those who argue for stringent idling restrictions point out that technology is becoming available that would allow onboard heating and air conditioning units to be run by smaller, more fuel efficient on board auxiliary power units (APUs).  Others note that some truck stops are beginning to provide electrical outlets to allow for land based power to run the heating and air conditioning units in the cab.  The trucking industry counters by noting the significant costs associated with retrofitting older cabs with APUs.  Many of the new laws allow for a “conditional” exemption in this situation which allows extended idling for some number of years to allow for new technology to be phased in.  Some states also provide grants or other economic incentives to encourage retrofit or other efforts to reduce idling time.

 

Another potentially controversial issue is enforcement.  Is there going to be a monetary penalty?  If so, who pays?  The driver?  The owner of the vehicle?  The owner of the transportation terminal where loading and unloading is significantly delayed?  If there is going to be an active enforcement program, then who does the enforcing?  The environmental regulatory agency?  The police?

 

Whatever ultimate form the new law takes, it is clear that many states and local governments are no longer willing to sit idly by.

A FLORIDA ROAD TRIP FOR COAL ASH SPILL ANSWERS?

As I write, the computer says it is 13 degrees outside so a trip to Florida’s warmer clime sounds pretty good right now.  Congress, TVA, and federal and state regulators might want to consider taking that ride as they struggle with the challenge of responding to the recent coal ash spills.

 

In December, a massive release of materials from a coal ash disposal facility in Scott County, Tennessee, made the headlines.  Members of Congress are holding hearings and calling the Tennessee Valley Authority which operates the power plant to task.  EPA Administrator designate Lisa Jackson has pledged to investigate and evaluate the need for a federal regulatory response.  Consideration of the Florida response to similar incidents a few years ago may well be instructive.

 

Most people outside of the area are not aware that a few short miles south and west of Disney World, in a region of Florida known as the “Bone Valley,” major surface mining for phosphate rock has been going on for decades.  This material is processed into fertilizer at one of several large processing facilities located in the area and is then sold to farmers in the U.S. and around the world to enhance crop production.

 

The production of fertilizer involves the use of large amounts of acidic process water and the generation of large volumes of a byproduct solid material called phosphogypsum.  The process water is managed in large ponds so that it can be recycled and reused.  The phosphogypsum is placed in piles called “stacks” which can cover hundreds of acres and can often reach 200 feet above the ground surface or higher.  Process water is often stored on top of the stacks.

 

In 1997, a breach occurred in a dike at the top of stack located near Mulberry, Florida, allowing over 50 million gallons of process water to enter adjacent wetlands and the Alafia River.  In response, the Florida Department of Environmental Protection convened a Task Force to consider the appropriate regulatory response.  The Task Force was made up of experienced state and local regulators, respected academics, expert engineers, representatives of environmental interest groups, and industry experts.  I served as environmental counsel to the phosphate industry throughout the process.

 

What resulted was a comprehensive re-write of Florida’s phosphogypsum management rule establishing tough standards for the construction of new stacks and ponds as well as detailed requirements for operation, maintenance and inspection of existing and new impoundment structures.

 

The Task Force effort reflects a good example of what can happen when the best minds are locked in a room, egos are checked at the door, and the participants are guided by a commitment to reach a result that is technically sound and highly protective of the environment.  EPA would do well to look south as it tackles this challenge.